896 F.

2d 848
15 Fed.R.Serv.3d 1248

Katherine MILTIER, Administratrix of the Estate of

Gwendolyn
Miltier, Plaintiff-Appellant,
v.
Charles BEORN; Leon Dixon; Robert W. Fry; Reva H.
Barker;
Mary Spencer; Ann F. Downes; Shirley Burton; Ray
Kessler; Edward W. Murray; John Doe, Warden, & other
unknown named Wardens of Virginia Correctional Center for
Women, individually and officially, Defendants-Appellees,
and
Kay Upton; Allyn R. Sielaff, Defendants.
Katherine MILTIER, Administratrix of the Estate of
Gwendolyn
Miltier, Plaintiff-Appellee,
v.
Shirley BURTON; Ann F. Downes, Defendants-Appellants,
and
Leon Dixon; Robert W. Fry; Reva H. Barker; Mary Spencer;
Kay Upton; Ray Kessler; Edward W. Murray; Allyn R.
Sielaff; John Doe, Warden, & other unknown named Wardens
of
Virginia Correctional Center for Women, individually and
officially; Charles Beorn, Defendants.
Nos. 89-2635, 89-2637.

United States Court of Appeals,

Fourth Circuit.
Argued Dec. 4, 1989.
Decided Feb. 20, 1990.

James Michael Hanny (Susan C. Minkin, Christopher V. Tisi, and

Michelle A. Parfitt, Ashcraft & Gerel, Washington, D.C., on brief), for
appellant.
Frank B. Miller, III (M. Pierce Rucker, John B. Catlett, Stacy P.
Thompson, Sands, Anderson, Marks & Miller, on brief), Michael Paul
Falzone (Paul A. Simpson, Brian K. Jackson, Hirschler, Fleischer,
Weinberg, Cox & Allen, Robert S. Brewbaker, Jr., Brewster S. Rawls,
Browder, Russell, Morris & Butcher, Rosewell Page, III, Mary M.H.
Priddy, McGuire, Woods, Battle & Boothe, and D. Patrick Lacy, Jr.,
Kathleen S. Mehfoud, Hazel, Thomas, Fiske, Beckhorn and Hanes, P.C.,
Richmond, Va., on brief), for appellees.
Before HALL, PHILLIPS and CHAPMAN, Circuit Judges.
PHILLIPS, Circuit Judge:

Gwendolyn Miltier, an inmate at the Virginia Correctional Center for Women

(VCCW), was found dead next to her bed in the prison clinic after having
suffered an acute heart attack. Katherine Miltier (Miltier), administratrix of her
daughter Gwendolyn's estate, brought this 42 U.S.C. Sec. 1983 action against
defendant doctors, nurses, wardens, and prison administrators (collectively,
defendants), asserting that defendants violated Gwendolyn's eighth amendment
right to be free from deliberate indifference to a serious medical need during her
incarceration at VCCW. Miltier also alleged pendent state-law claims under
Va.Code Sec. 8.01-50. On cross motions for summary judgment, the district
court dismissed Miltier's Sec. 1983 claim against all defendants and declined to
exercise pendent jurisdiction over Miltier's pendent state-law claims.
Additionally, the district court denied Rule 11 sanctions as requested by the
defendant wardens. We affirm in part, reverse in part, and remand.

* In reviewing the district court's grant of summary judgment for the

defendants, we examine the facts in the light most favorable to Miltier. See
Sosebee v. Murphy, 797 F.2d 179, 181 n. 2 (4th Cir.1986). On January 9, 1985,
Gwendolyn received a five-year sentence for operating a motor vehicle after
having been declared an habitual offender, and was incarcerated at the
Portsmouth City Jail. During her incarceration, Gwendolyn complained of chest
pain, blackouts, and shortness of breath. A jail physician, Dr. Charles Barclay,
diagnosed Gwendolyn as suffering from angina and prescribed a drug to relieve
her symptoms. See J.A. 777-78. At Dr. Barclay's recommendation, Gwendolyn

was transferred on an expedited basis to VCCW on January 24, 1985. Assistant

VCCW warden Shirley Burton was notified of the reason for Gwendolyn's
expedited transfer. Additionally, pursuant to the sentencing judge's order,
Gwendolyn's medical records, which clearly documented her medical condition
and a family history of heart disease, were sent with her to VCCW to become
part of her institutional records.
3

Because of Gwendolyn's medical condition, VCCW officials immediately

assigned Gwendolyn to VCCW's Clinic Hall medical unit. See J.A. at 80, 795.
Clinic Hall is a twelve to fourteen bed unit where nurses provide round-theclock care and monitoring of inmate-patients' medical conditions. Defendant
Mary Spencer, R.N., was VCCW's head nurse, and defendant Rena Barker,
C.H.N.T., was a Clinic Hall physician's assistant. Defendant Dr. Leon Dixon, a
VCCW part-time contract physician, provided Gwendolyn's primary treatment
at VCCW, and consulted with Gwendolyn concerning her medical problems on
at least thirteen occasions between January 31, 1985, and February 26, 1986.
On April 25, 1985, Dr. Dixon recommended that defendant Dr. Robert W. Fry
refer Gwendolyn to the Medical College of Virginia cardiology unit ("MCV").
Dr. Fry, the Chief Physician of the Office of Health Services for the Virginia
Department of Corrections, initially approved Dr. Dixon's request for
Gwendolyn's transfer to MCV, and contacted Dr. Michael A. Pears at MCV on
June 4, 1985, to schedule an appointment. Ultimately, no appointment was
scheduled and Gwendolyn was never referred to MCV physicians.

Following the aborted MCV referral, Gwendolyn continued to complain of

chest pain. Additionally, Gwendolyn's mother continued to write VCCW and
other state officials concerning her daughter's medical condition and perceived
lack of medical care. Because of the continued complaints, Dr. Fry asked
defendant Dr. Beorn, a contract internist for the Virginia Department of
Corrections (VDOC), to evaluate Gwendolyn's condition. Dr. Beorn first saw
Gwendolyn on August 2, 1985, and considered arteriosclerotic heart disease
indicating parenthetically that he doubted this was the proper diagnosis. See
J.A. at 677. Dr. Beorn admits that none of the performed tests could have
indicated such a diagnosis because none of the tests were of any value in
detecting cardiac problems. See Appellee's Br. at 6 (citing J.A. 677).
Gwendolyn last saw Dr. Beorn on October 25, 1985, complaining of chest pain,
shortness of breath, and dizziness. See J.A. at 668. Notwithstanding this visit,
Beorn moved Gwendolyn out of VCCW Clinic Hall and into the general prison
population. At no time did any of Gwendolyn's health care providers perform
the necessary diagnostic testing to rule out arteriosclerotic coronary heart
disease.

Between February 26, 1986, and June 11, 1986, the medical staff at VCCW
apparently did not see or evaluate Gwendolyn. On June 11, 1986, Gwendolyn
reported to the VCCW clinic complaining of chest pain, dizziness, weakness,
and headaches, and was told to return to her dormitory. See J.A. at 670.
Gwendolyn returned to the clinic on June 15, 1986, with similar complaints.
The nurse on duty ordered Gwendolyn back to the dormitory with instruction to
rest and relax. On June 16, 1986, at 8:55 AM, Gwendolyn, this time assisted by
two inmates, returned to the clinic complaining of severe chest pain and pain in
her arms. The clinic nurses checked Gwendolyn's vital signs and phoned Dr.
Beorn at 10:00 AM to advise him of Gwendolyn's complaints and condition.
Dr. Beorn prescribed a tranquilizer and ordered Gwendolyn to be placed under
observation until Dr. Dixon arrived that evening. At 4:00 PM, Gwendolyn,
having suffered an acute heart attack due to coronary artery thrombosis and
arteriosclerosis, was found lying dead on the floor next to her bed in the clinic.

II
6

In reviewing the district court's grant of defendants' motions for summary

judgment, it is logical to consider separately the Sec. 1983 liability of the
defendant health care providers and the liability of the defendant prison
administrators. We also note at the outset that Dr. Dixon, though a private
contract physician, does not contest that if his actions resulted in a deprivation
of Gwendolyn's constitutional rights, he would be subject to liability under Sec.
1983. See Carswell v. Bay County, 854 F.2d 454, 456 (11th Cir.1988).

* Deliberate indifference by prison personnel to an inmate's serious illness or

injury is actionable under 42 U.S.C. Sec. 1983 as constituting cruel and unusual
punishment contravening the eighth amendment. See Estelle v. Gamble, 429
U.S. 97, 104-05, 97 S.Ct. 285, 291-92, 50 L.Ed.2d 251 (1976). To establish that
a health care provider's actions constitute deliberate indifference to a serious
medical need, the treatment must be so grossly incompetent, inadequate, or
excessive as to shock the conscience or to be intolerable to fundamental
fairness. See Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir.1986) (cases
collected). Deliberate indifference may be demonstrated by either actual intent
or reckless disregard. See Benson v. Cady, 761 F.2d 335, 339 (7th Cir.1985). A
defendant acts recklessly by disregarding a substantial risk of danger that is
either known to the defendant or which would be apparent to a reasonable
person in the defendant's position. See id. Nevertheless, mere negligence or
malpractice does not violate the eighth amendment. See Estelle, 429 U.S. at
106, 97 S.Ct. at 292.

* We turn first to Miltier's claims against Gwendolyn's treating physicians: Drs.

Dixon, Fry, and Beorn. In granting the defendant physicians' respective motions
for summary judgment, the district court held that, although the individual
actors may indeed have been negligent, none of their acts rose to the level of
deliberate indifference required to make out an eighth amendment violation
under Estelle. The district court reasoned that, although interrogatories reflected
that Miltier's medical expert, Dr. Simpson, was prepared to testify that each of
the defendant physicians had breached the standard of care owed Gwendolyn
Miltier, in no interrogatory or deposition was Dr. Simpson expressly asked, nor
did he expressly state, that Gwendolyn's maltreatment constituted more than
mere negligence. The district court, based upon the following dictum in Rogers
v. Evans, 792 F.2d at 1058, held Dr. Simpson's omission fatal to Miltier's
claim: "Whether an instance of medical misdiagnosis resulted from deliberate
indifference or negligence is a factual question requiring exploration by expert
witnesses." Id. Dr. Simpson's failure expressly to testify that the defendant
physicians' conduct was "grossly negligent" obviated Miltier's claim.*
9

We simply cannot agree that Rogers requires expert incantation of "gross

indifference" or "deliberate indifference" before a Sec. 1983 claim against a
physician can survive summary judgment. We read Rogers merely to stand for
the logical proposition that expert exploration is required to aid the jury in
determining the threshold standard of medical care. From there, it would
require no great leap of logic for a jury to find, even without further expert
testimony, that certain actions fell so far below the enunciated standard of care
that they constituted gross indifference actionable under Sec. 1983. Rogers
nowhere requires express expert testimony to the effect that the physicians'
behavior was grossly negligent as the sine qua non of a Sec. 1983 deliberate
indifference claim.

10

In determining whether to grant summary judgment, all justifiable inferences

must be drawn in favor of the non-movant. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). Where it
is an "eminently reasonable, if not inescapable, inference" that an expert would
testify a certain way, denial of summary judgment is "entirely in keeping with
the Supreme Court's admonition that 'all justifiable inferences are to be drawn
in ... favor [of the non-movant].' " Catrett v. Johns-Manville Sales Corp., 826
F.2d 33, 38 n. 11 (D.C.Cir.1987) (quoting Anderson, 477 U.S. at 255, 106 S.Ct.
at 2513). Taking the evidence of Gwendolyn's maltreatment in the light most
favorable to Miltier, it is certainly an eminently reasonable, if not inescapable
inference that Dr. Simpson would testify that, in treating Gwendolyn, her
physicians' actions "disregard[ed] a substantial risk of danger that either [was]
known to [them] or would be apparent to a reasonable person in [their]
position," Benson v. Cady, 761 F.2d at 339, such as to render them liable under

Sec. 1983. Moreover, once a plaintiff "has named a witness to support her
claim, summary judgment should not be granted without ... somehow showing
that the named witness' possible testimony raises no genuine issue of material
fact." Celotex v. Catrett, 477 U.S. 317, 328, 106 S.Ct. 2548, 2555, 91 L.Ed.2d
265 (1986) (White J., concurring). At no time did Dr. Simpson limit his
testimony to the negligence of the treating physicians and it was error for the
trial court to infer such a limitation. See Ditkof v. Owens-Illinois, Inc., 114
F.R.D. 104, 106 (E.D.Mich.1987) ("plaintiff has identified a witness; the parties
simply dispute the probable content of his testimony. Such a dispute raises a
genuine fact issue for trial....").
11

Even aside from the Simpson affidavit, the record evidence taken in the light
most favorable to Miltier would support an inference that each of the three
treating physicians was deliberately indifferent to Gwendolyn's serious medical
need. Dr. Dixon, who was apparently most familiar with Gwendolyn's
condition, was obviously well aware that her symptoms were cardiac-related.
This is evidenced by Dixon's recommendation, as early as 1985, that
Gwendolyn be referred to the MCV cardiac unit. This was over a year before
Gwendolyn died. The evidence suggests that Dixon made no effort to follow up
on his recommendation even though he saw Gwendolyn for the same chest and
arm pains on numerous occasions following his recommendation. Failure to
provide the level of care that a treating physician himself believes is necessary
could be found conduct which "surpass[es] negligence and constitute[s]
deliberate indifference." Ancata v. Prison Health Serv., Inc., 769 F.2d 700, 704
(11th Cir.1985) ("Intentional failure to provide service acknowledged to be
necessary is the deliberate indifference proscribed by the Constitution.").

12

Similarly, the evidence of record would support a finding that Dr. Fry, after
approving the recommendation for referral to MCV, did nothing to follow up.
Moreover, as with Dr. Dixon, Dr. Fry was aware of Gwendolyn's continued
complaints after referral to the MCV cardiology unit. Fry claims that Dr. Pears,
an MCV physician, purportedly did not believe a cardiac evaluation was
warranted based upon Dr. Fry's recitation of Gwendolyn's symptoms. Dr. Pears,
although he could not recall the substance of the conversation with Fry, stated
that, based upon Gwendolyn's symptoms, he certainly would have
recommended an evaluation. Clearly, this presents a triable jury question on the
issue of Fry's deliberate indifference to Gwendolyn's medical needs. See
Ancata, 769 F.2d at 704.

13

Finally, even Beorn concedes that the tests he conducted did not allow him to
rule out arteriosclerotic heart disease in Gwendolyn's case. See Appellee's Br.
at 6. Even when all of Gwendolyn's test results returned normal, indicating that

there was no non-cardiac explanation for her symptoms, Dr. Beorn continued to
treat her symptoms as non-cardiac-related and failed to order a cardiac
evaluation. When coupled with Dr. Simpson's testimony, it is clear that a
reasonable jury could find deliberate indifference. See id.
14

Viewing the treating physicians' failure to act and Dr. Simpson's expert
testimony in the light most favorable to Miltier, we conclude that the district
court erroneously dismissed Miltier's claim on summary judgment.

2
15

We turn next to Miltier's claim against Nurses Spencer and Barker. Failure to
respond to an inmate's known medical needs raises an inference that there was
deliberate indifference to those needs. See Sosebee v. Murphy, 797 F.2d 179,
182 (4th Cir.1986). Adrena Taylor, Gwendolyn's co-inmate at VCCW's Clinic
Hall, testified in deposition that on more than one occasion Gwendolyn lost
consciousness, fell, and was left unattended by Nurses Barker and Spencer. See
J.A. at 764-65. Additionally, Miltier offered the affidavits of VCCW inmates
Carlotta Grandi and Wanda Benton. Benton's affidavit states that Nurse
Spencer told Grandi that Gwendolyn was fabricating her complaints and that
her problems were all in her mind. See J.A. at 771-72. Grandi's affidavit made
similar averments concerning Nurse Spencer. See J.A. at 769-70.

16

Finally, Miltier offered a Fed.R.Civ.P. 26(b)(4) statement of expert witness

testimony setting forth the expected testimony of Miltier's nursing expert,
Robin Ledbetter, to the effect that the nurses' breach of care was "so egregious
as to be deliberately indifferent to Gwendolyn's medical needs." J.A. at 741.
Nevertheless, because Ledbetter failed to repeat this testimony in her
deposition, the district court held that, under Rogers, Ledbetter's failure
justified summary judgment in favor of nurses Spencer and Barker. As
discussed above, this misinterprets Rogers. Taken as true for the purposes of
reviewing the district court's grant of summary judgment, inmates Grandi,
Taylor, and Benton's affidavits, coupled with Ms. Ledbetter's testimony, create
a triable issue on the question of the defendant nurses' deliberate indifference.
This evidence manifestly forecloses summary judgment for the nurses.

III
17

We turn now to the liability of the defendant VCCW officials--Wardens

Downes and Burton and defendant VDOC officials Murray and Kessler
(hereinafter referred to as supervisory defendants).

18

Section 1983 liability on the part of the supervisory defendants requires a

showing that: (1) the supervisory defendants failed promptly to provide an
inmate with needed medical care, see Boyce v. Alizaduh, 595 F.2d 948, 953
(4th Cir.1979); (2) that the supervisory defendants deliberately interfered with
the prison doctors' performance, see Gamble v. Estelle, 554 F.2d 653, 654 (5th
Cir.1977); or (3) that the supervisory defendants tacitly authorized or were
indifferent to the prison physicians' constitutional violations. See Slakan v.
Porter, 737 F.2d 368, 372 (4th Cir.1984) (discussing supervisory liability for an
inmate's beating by prison guards). Miltier concedes that Gwendolyn had
unfettered access to VCCW's medical system. Miltier's claim of supervisory
liability appears to rest on the third theory.

19

Supervisory liability based upon constitutional violations inflicted by

subordinates is based, not upon notions of respondeat superior, but upon a
recognition that supervisory indifference or tacit authorization of subordinate
misconduct may be a direct cause of constitutional injury. See Slakan, 737 F.2d
at 372. The plaintiff "not only must demonstrate that the prisoners face a
pervasive and unreasonable risk of harm from some specified source, but he
must also show that the supervisor's corrective inaction amounts to deliberate
indifference or 'tacit authorization of the offensive [practices].' " Slakan, 737
F.2d at 373 (quotation omitted). It is insufficient merely to show deliberate
indifference to a serious medical need on the part of the subordinate physicians.
See Boyce, 595 F.2d 948 (no supervisory liability despite potential deliberate
indifference claim against subordinate physicians).

20

Miltier points to correctional expert Joseph P. Gallagher's testimony to the

effect that the four supervisory defendants' actions went far afield of any
accepted correctional standards. Taking his testimony as true, as we must for
the purposes of ruling on the propriety of summary judgment for the
supervisory defendants, this testimony alone is simply insufficient to create a
triable issue. Cf. Rogers, 792 F.2d at 1058 (plaintiff's allegation that the prison
failed to meet standard derived from model standards for good prison
administration failed to rise to the level of an eighth amendment violation).
Even assuming that the physicians' failure to provide a cardiac exam was a
"pervasive and unreasonable risk of harm from some specified source," see
Slakan, 737 F.2d at 372, it would be an unprecedented extension of the theory
of supervisory liability to charge these wardens, not only with ensuring that
Gwendolyn received prompt and unfettered medical care, but also with
ensuring that their subordinates employed proper medical procedures-procedures learned during several years of medical school, internships, and
residencies. No record evidence suggests why the wardens should not have
been entitled to rely upon their health care providers' expertise. Moreover,

everything in the record suggests that the wardens closely monitored

Gwendolyn's health and ensured that she received medical treatment. See
Boyce, 595 F.2d at 953. Although record evidence suggests that the wardens
were aware of Gwendolyn's deterioration, it would be ironic indeed if their
awareness, resulting from close monitoring of Gwendolyn's condition, became
the vehicle by which they were rendered liable under Sec. 1983 for their
subordinates' misconduct.
21

In Boyce v. Alizaduh, 595 F.2d at 953, we stated that where the plaintiffinmate's complaint nowhere indicated that supervisory defendants neglected his
needs, and where the prison physician promptly saw the plaintiff and engaged
in a course of treatment, the supervisory defendants were "beyond any doubt
not liable to the plaintiff under any conceivable state of facts." Id. Here, Miltier
has failed to meet the heavy burden of proof in supervisory liability cases.
Slakan, 737 F.2d at 373. Miltier's complaint is directed at the prison physicians
who actually performed the treatment, while the wardens are parties, not for
having failed to provide treatment, but on a theory of respondeat superior. In
short, there is simply no evidence to support a finding that the wardens tacitly
authorized their subordinate health care providers to employ grossly
incompetent medical procedure. Cf. Davidson v. Cannon, 474 U.S. 344, 348,
106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1985) (failure of prison officials to
respond to inmate's note alleging threat by fellow inmate did not constitute
abusive or oppressive employment of governmental power such as to render
supervisory personnel liable under the due process clause for inmate's beating).

22

As to VDOC officials Murray and Kessler, there is simply no evidence that

they were made aware of any complaints after 1985--a year before Gwendolyn
died. Their participation in Miltier's medical condition is even more remote
than that of wardens Murray and Kessler and is too attenuated to suggest
deliberate indifference on their part. Cf. Rogers, 792 F.2d at 1059 (defendant
too remote from medical situation to fall under Estelle deliberate indifference
standard).

IV
23

Wardens Downes and Burton cross appeal the district court's denial, without
explanation, of their motion for sanctions under Fed.R.Civ.P. 11 and 28 U.S.C.
Sec. 1927. Downes and Burton request this court to vacate and remand this
portion of the district court's opinion for further proceedings. Our review is for
abuse of discretion. See Foval v. First Nat'l Bank of Commerce in New Orleans,
841 F.2d 126, 130 (5th Cir.1988).

24

Fed.R.Civ.P. 11 requires imposition of sanctions upon attorneys or their clients

who file pleadings not reasonably grounded in fact or law. See Lavay Corp. v.
Dominion Fed. Sav. & Loan Ass'n, 830 F.2d 522, 528 (4th Cir.1987). When the
motion for sanctions is foolish, or when the reasons for denying a colorable
motion are apparent from the record, the judge "need not belabor the obvious."
Szabo Food Serv., Inc. v. Canteen Corp., 823 F.2d 1073, 1084 (7th Cir.1987).
Nevertheless, in cases where the circumstances and the record do not clearly
reflect the reasons for the district court's disposition of a Rule 11 motion, we
have remanded with instructions that the district court make findings of fact
concerning the frivolousness of the non-movant's action. See, e.g., Straitwell v.
National Steel Corp., 869 F.2d 248, 253 (4th Cir.1989).

25

Miltier's claim, as we understand it, was that Wardens Downes and Burton were
indifferent to the prison physicians' grossly incompetent course of treatment. As
noted above, it is undisputed that the wardens granted Miltier unfettered access
to the prison's extant medical facilities. Their only error, if any, was in relying
on their subordinates' competence--competence upon which they were entitled
to rely under these circumstances. We therefore cannot say that the
circumstances and the record clearly reflect the reasons for the district court's
denial of Downes' and Burton's Rule 11 motion. Accordingly, we remand for
consideration (or reconsideration) the motions of Downes and Burton for Rule
11 sanctions. In doing so we express no opinion on the merits of the motion.
The reasons for the district court's action on the motion should be at least
briefly set forth.

26

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Because we find that Simpson's deposition testimony coupled with the record
evidence of the physicians' treatment creates a triable jury issue, we need not
address the district court's refusal to grant Miltier's motion to incorporate an
affidavit filed in response to the defendant's reply brief raising for the first time
this interpretation of Rogers. The affidavit stated that, in Simpson's opinion,
each of the physicians acted with gross negligence